Trade deal talks expand as Congress debates tech legal shield

Speaker Nancy Pelosi (D-Calif.) is working to remove legal protections for technology companies from the United States-Mexico-Canada Agreement (USMCA) in the eleventh hour as lawmakers push to complete the deal before the end of the calendar year.

Lawmakers from both sides of the aisle have previously raised concerns about including language from Section 230 of the Communications Decency Act in trade deals, which gives platforms legal immunity for content posted by third-party users while also giving them legal cover to take good-faith efforts to moderate their platforms. 

However, Pelosi's decision to raise the issue significantly elevates its importance. 

Section 230 has recently received increased scrutiny from lawmakers as Silicon Valley has fallen out of favor in Washington. Interest in amending or even gutting Section 230 has clashed with the inclusion of similar language in the USMCA and a trade deal with Japan, which Tokyo formally approved Wednesday. 

Lawmakers have expressed concern that its inclusion could lock in the law and make it more difficult to alter domestically.

"There are concerns in the House about enshrining the increasingly controversial Section 230 liability shield in our trade agreements, particularly at a time when Congress is considering whether changes need to be made in U.S. law," a spokesperson for Pelosi told The Hill Thursday.

Sen. Josh Hawley (R-Mo.), a vocal critic of large tech companies, told reporters Thursday that "as 230 is under active consideration for revision going forward, I don't want to see us have our hands effectively tied by having 230 replicated in a bunch of agreements as we go forward."

Leaders of the House Energy and Commerce Committee, which has jurisdiction over the internet, expressed similar concerns earlier this year in a hearing over Section 230.

"I think that laws in these other countries don't really accommodate what the United States has done about 230 ... it is just inappropriate right now to insert this liability protection into trade agreements, and as a member of the working group that is helping to negotiate that agreement, I am pushing hard to make sure that it just isn't there," Rep. Jan Schakowsky (D-Ill.) said in the October hearing.

The Hill has reached out to U.S. trade representative (USTR) Robert Lighthizer, who is negotiating the USMCA on behalf of the administration, for comment on whether there have been discussions about removing Section 230 from the deal.

Although lawmakers like Hawley have raised concerns that including Section 230 provisions would stymie domestic efforts to amend it, it's not clear that that's the case.

The portion of USMCA related to Interactive Computer Services, Article 19.17, seems to make clear that all three parties retain the ability to alter intermediary liability laws included in trade deals, such as the Section 230 protection.

"Inclusion of Section 230 language in trade agreements does not stop the US from changing the law in the future should [it] choose to do so," Michael Petricone, a senior vice president at the Consumer Technology Association, a trade association which represents major tech companies including Amazon, Google and Facebook, wrote in a blog post Thursday.

"As it's currently written in the USMCA, it would not constrain Congress's ability to revise or change or enforce 230," Hawley acknowledged Thursday.

Some lawmakers who are outright opponents of Section 230 also applauded Pelosi's backing of removing it from the trade deal.

"It is completely irrelevant to the substance of USMCA, it was nothing but a giant gift to Big Tech that was air-dropped into the text of the agreement, I've urged the administration to simply delete the provision," Sen. Ted Cruz (R-Texas), who has claimed the protections allow for anti-conservative bias on tech platforms, told reporters Thursday.

Others contended that the protections just did not belong in the trade deal.

"We don't want Section 230 in there," Rep. Frank Pallone (D-N.J.) said. "Take it out... we don't want it in the bill. It doesn't belong there."

However, some Republicans who have opposed Section 230 in the past were united Thursday on supporting USMCA despite the protections. 

"I'm still a "yes" on the USMCA as is, but frankly I would have preferred that those Section 230 provisions not be included," Rep. Matt Gaetz (R-Fla.) said. 

House Energy and Commerce ranking member Rep. Greg Walden (R-Ore.), who had previously asked USTR to remove the protections, tweeted Thursday that he still supports pushing through the trade agreement.

"But, let me be clear I support the #USMCA," he wrote. "@SpeakerPelosi: Call the vote. Let's get it done." 

Separate from the substance of Section 230, Republican lawmakers have expressed concern that Pelosi is bringing up the issue to slow down the USMCA, which President Trump has publicly supported.

"I just wonder when enough is ever going to be enough with the Speaker," Sen. Roger Wicker (R-Miss.) told reporters Thursday. "Here it is, December the 5th, this should have been taken up before October. So I don't think much of this making demands."

Hawley agreed.

"I have this feeling that Speaker Pelosi is looking for any excuse to delay USMCA, which I am not in support of," he said.

Emily Birnbaum contributed to this report.